“Succumbing to the allure of bad facts leads inevitably to the development of bad law.” – Judge Clayton Greene, in his dissent in Tracey v. Solesky

In April, the Court of Appeals, by a 4-3 margin, issued a decision in the case of Tracey v. Solesky that effectively designated all “pit bulls” and “cross-bred pit bulls” as inherently dangerous animals, and the Court determined that the owning, harboring or controlling of these dogs was an inherently dangerous activity. This resulted in the Court applying a strict liability standard against any person owning, harboring, or controlling pit bulls for any injuries stemming from a pit bull attack. This was the first instance where a Maryland Court established a breed-specific standard of liability for dog attacks. Liability stemming from owning, harboring, or controlling any non-pit bull dog remains subject to the old common law standard of whether the owner knew or should have known about the dog’s dangerous propensities. In addition to the breed-specific nature of the ruling, the significant consequence of the Court’s opinion was that it applied this strict liability standard, not to the owner of the dog, but to the owner’s landlord when the landlord knows or should know of the existence of a pit bull on the premises.

The Tracey ruling has since caused quite a stir since it was released, and has been met with overwhelming criticism from property owners/landlord groups and legal defense organizations, as well as animal activists. This has made for some strange bedfellows, as the Maryland legislature has received quite a bit of pressure to enact legislation nullifying the Court’s ruling. In an Op-ed to the Baltimore Sun in July, Delegate Jon Cardin of Baltimore County, taking the animal-advocate view, refer to the Court’s ruling as a “massive shift in Maryland law, expected to bring about great expense to innocent parties and to keep good dogs in our already overpopulated shelters.” The Governor and top legislators convened a task force to study potential legislative alternatives, and a pit bull bite liability bill was introduced during the special legislative session in Annapolis to address the liability concerns associated with the strict liability standard. However, on Wednesday, the Senate and House of Delegates gave up on the bill after the two sides could not agree on any meaningful specifics on a bill, and the measure has died. This means that for the foreseeable future, the Tracey v. Solesky ruling will stand. This was not a difficult problem for the legislature to fix. All it had to do was enact a law reinstating the prior common-law standard that remains in force for owners of all other dogs. However, as politicians tend to do, they had to make it more complicated than it needed to be, for fear of offending anyone. As is often the case, politicians opted to be remain politicians, afraid to take any stand for fear it may cost them votes. The result is that nothing is done, and the same problems that were some plainly evident after the Court’s ruling went into effect (none of which were problems under the common law standard) will remain problems. Del. Cardin expressed concern in his Op-ed piece that fixing the Court’s mistake was imperative and could not wait until the January session, as the decision was causing landlords to force dog owners out of their properties, hurting pet adoptions, and keeping shelters too crowded. Unfortunately, not enough of his colleagues were committed to finding a solution.

Without getting into the “animal advocate” side of the debate, the Court of Appeals’ ruling is rife with problems and presents difficult problems for insurers, landlords, tenants, and yes, even plaintiffs. It should be noted that this ruling may not even have the support of a majority of the current members of the Court of Appeals. Despite the 4-3 decision, two of the judges, including Judge Cathell – the author, are retired and were specially assigned to hear this case. Judges McDonald and Battaglia were not involved in the decision. The most confusing aspect of the ruling is how one can be expected to define a “pit bull or “cross-bred pit bull.” The majority opinion did not address this point, but it is clearly not an easy call. Is the Court expecting landlords to be dog experts who would have the ability to know by a glance whether a dog is a pit bull, or better yet, a “cross-bred” pit bull? Should landlord require that their prospective tenants obtain medical tests for their dog in order to establish whether there is any pit bull in the dog’s lineage. The fact is, there are a lot of people who know nothing about dogs and wouldn’t know how to differentiate between a pit bull or a Boxer or a Weimaraner. In his dissenting opinion, Judge Greene referred to the majority’s ruling with respect to cross-bred pit bulls as an “unenlightening and unworkable rule.”

Where the opinion goes of the rails is when it imputes the strict liability theory onto a landlord, in addition to a dogs owner. What would constitute knowledge by the landlord of the presence of a pit bull on the rented premises? If the dog owner takes the dog out to the courtyard of a rental property every day, would a court determine that the landlord should have known that the dog was being kept there, even if he never actually saw the dog? Would a landlord be able to accept the representation of a potential tenant that their dog was not a pit bull, or would he have to undertake additional measures to determine if the representation was accurate? The breadth of the opinion, however, could extend much further than landlords. Anyone who harbors or controls a pit bull could be subject to strict liability. Seemingly, “anyone” could include veterinarians, kennels and shelters, dog walkers, or even public entities that control parks. Without ever seeing the pit bull act in any manner other than friendly and having been told nothing to the contrary, a veterinarian could be held strictly liable if a pit bull bites some in her office. The intelligent veterinarian will choose to not treat pit bulls. The intelligent animal shelter will opt not to house pit bulls, and the intelligent landlord will opt not to permit tenants to own pit bulls. In fact, with the vague and undefined “cross-breed” pit bull being inherently dangerous as a matter of law, a smart landlord will simply refuse to allow a tenant to have any dog on the premises, lest he find out later that a court decides that he should have known that the dog he allowed on his premises was part pit bull. Further, these non-owners who may be subject to strict liability may be faced with additional difficulties in obtaining and maintaining liability insurance without policies expressly prohibiting dogs or pit bulls on the premises. Several types of liability policies already limit or exclude liability for animal attacks, or require an additional endorsement in order to provide such coverage. With the prospect of insuring someone who could be strictly liable for such attacks, insurers will be looking at options to further limit liability coverage, which will have the effect of leaving landlords and others without liability insurance for any dog attacks. To the dismay of plaintiffs’ attorneys who may be presently quite pleased with the Tracey holding, they may find in the future that what they gained in terms of making it easier to get a judgment against defendants in pit bull cases may have been less than what they will lose in terms of their being insurance available to pay those judgments or settle those claims.

About The Authors

Brett A. Buckwalter is a Partner in the Litigation Department of Niles, Barton & Wilmer, LLP, with 15 years of experience practicing in insurance law, professional liability, general civil litigation, and employment law.

Rachel M. Severance is an Associate in the Litigation Department, concentrating in the areas of civil and commercial litigation, insurance coverage law, subrogation, and employment law in the state of Maryland.

Dalene A. Radcliffe is a Litigation Associate who concentrates her practice in civil and commercial litigation, insurance coverage, employment law, and construction law in the state of Maryland and the District of Columbia.

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